deeny97.txt Transcription of hearing: IN THE HIGH COURT OF JUSTICE 1993 Folio No.335L QUEEN'S BENCH DIVISION (and associated actions) COMMERCIAL COURT Royal Courts of Justice Friday, 17th January 1997 Before: MR. JUSTICE COLMAN (In Chambers) B E T W E E N : DEENY & Ors. Plaintiffs - and - GOODA WALKER Ltd. & Ors. Defendants P R O C E E D I N G S A P P E A R A N C E S MR. D. LORD (instructed by Messrs. Wilde Sapte) appeared on behalf of the Plaintiffs in all the Actions. MR. M. FREEMAN, Solicitor of Messrs. Epstein Grower & Michael Freeman, appeared on behalf of the continuing Plaintiffs. MR. S. BROOKS, Solicitor of Messrs. Elborne Mitchell, appeared on behalf of the majority of the Defendants in the Main Action and in the 1990 Action. MR. K. LYON, Solicitor of Messrs. Cameron Markby Hewitt, appeared on behalf of the Defendants in the Auditors' Action. MR. T. BROWN, Solicitor of Messrs. Reynolds Porter Chamberlain, appeared on behalf of the Defendants in the E&O Action. MR. F. MACKIE, Solicitor of Messrs. Norton Rose, appeared on behalf of Gooda Walker 387 Names. MISS J. WICKS (instructed by J. Nichols, Esq.) appeared on behalf of Lloyd's. MR. P. COLFOX, appeared as a litigant in person. _________ MR. LORD: My Lord, the first three summonses are the only ones that are nothing to do with me. I do not know if your Lordship wants to take them first or to deal with the rest of them. MR. JUSTICE COLMAN: I am not at all clear in my own mind what the first three summonses are. Which are they? MR. LORD: My Lord, it is Mr. Rew v. Littlejohn Frazer and the two underneath it, but I know nothing about them. Perhaps I will let somebody else deal with that. MR. LYON: My Lord, I appear in the first summons, Rew v. Littlejohn Frazer, for the defendant auditors. This one is actually hopefully very straightforward. It was last before you on 13th December. As a result of that hearing 274 Names discontinued and 55 were the subject of an unless order. Since that time it has been agreed between those acting for the plaintiffs and those acting for the defendants that four further Names are to discontinue, and the balance are advised by Mr. Freeman and he has consented to a dismissal with prejudice, no order as to costs. MR. JUSTICE COLMAN: That is right, Mr. Freeman, is it? MR. FREEMAN: Absolutely, my Lord. MR. JUSTICE COLMAN: Is there a draft order in front of me? MR. LYON: My Lord, there is not, it is because the ---- MR. JUSTICE COLMAN: Well, I shall make an order accordingly then in those terms. Thank you very much. Now, what is the next one? MISS WICKS: My Lord, can I assist here? I appear on behalf of Lloyd's and these are two summonses in the Evennett litigation brought by Lloyd's. MR. JUSTICE COLMAN: So this is the Robert Irving Aitchison one? MISS WICKS: That is right, my Lord. MR. JUSTICE COLMAN: And the Mrs. Jennifer Jasper one? MISS WICKS: That is right yes. Your Lordship should have a bundle before you. MR. JUSTICE COLMAN: Yes, I have seen that. MISS WICKS: That has the relevant papers but I hope to be able to take this relatively quickly. Following a similar application before Mr. Justice Cresswell this morning in the MacMillan litigation, the parties who appear before you have managed to substantially agree terms. Mr. Richard Slade, to my right, appears for the defendant members' agents who are represented by Cameron Markby Hewitt, and Miss Thompson, who is slightly behind me to my right, appears for the managing agents who are represented by Holman Fenwick Willan. The draft forms of order your Lordship also should have before you. They are not in the bundle. Does your Lordship have those? MR. JUSTICE COLMAN: Yes, I do. MISS WICKS: These cannot formally be made by consent because there are parties who do not appear before you today, but they are agreed to by the parties who are represented today. Essentially, these orders follow on from orders made by yourself on 22nd November 1996 effectively giving time for an application for directions to be made, in default of which the actions would be struck out. MR. JUSTICE COLMAN: Yes. MISS WICKS: Your Lordship will appreciate that after Reconstruction and Renewal there are two categories of plaintiff - accepting Names and non-accepting Names - and two categories of defendants - participating and non-participating defendants. MR. JUSTICE COLMAN: Quite so. MISS WICKS: It is intended to indicate the accepting Names in Schedule A to this order and that will take the form of the schedule to the summons which is at tab 3 of your Lordship's bundle. MR. JUSTICE COLMAN: Yes. MISS WICKS: Schedule B will indicate the non-participating defendants. There needs to be a change to the schedule as annexed to summons in order to take account ---- MR. JUSTICE COLMAN: Both schedules? MISS WICKS: No, only Schedule B. MR. JUSTICE COLMAN: No, both actions. MISS WICKS: I am sorry, yes, my Lord. Exactly the same order sought in both actions. MR. JUSTICE COLMAN: The change that needs to be made is what? MISS WICKS: Is to delete Merrett Syndicates Ltd. ---- MR. JUSTICE COLMAN: As the non-participant, because they have now been permitted to participate. MISS WICKS: Absolutely, my Lord, and also Anton Underwriting Ltd., for the same reason. MR. JUSTICE COLMAN: They are in the same category? MISS WICKS: Yes, my Lord. MR. JUSTICE COLMAN: I will alter that. MISS WICKS: We are having fresh schedules drawn up with those deleted, and those can be annexed to the order which can be lodged. MR. JUSTICE COLMAN: Yes. MISS WICKS: Essentially the effect of these orders as between accepting plaintiffs and participating defendants, the actions stand dismissed in accordance with your earlier order. That is confirmed at para.3. MR. JUSTICE COLMAN: Yes. MISS WICKS: As between accepting plaintiffs against non-participating defendants, the actions having been withdrawn, they stand dismissed but that is without prejudice to the possibility of a claim in any liquidation, and those are orders 1 and 2. In relation to non-accepting plaintiffs against all defendants, as none of those plaintiffs has made an application in accordance with your earlier order, they stand dismissed. MR. JUSTICE COLMAN: Automatically. MISS WICKS: Automatically. There is nothing to deal with on that order. MR. JUSTICE COLMAN: That must be common ground, I take it. MISS WICKS: My Lord, yes. Unless there is anything else on which I can assist you, I would ask you to make those orders. MR. JUSTICE COLMAN: No. I make the orders accordingly. MISS WICKS: Thank you. MR. COLFOX: Is it appropriate for me to speak? I am a plaintiff in that action, and it has just come to my notice while I was waiting outside that I am put as an accepting Name. MR. JUSTICE COLMAN: You are an accepting Name? MR. COLFOX: Yes. But Lloyd's have told me that I am a non-accepting Name. MR. JUSTICE COLMAN: Yes. Well, you are one of many! I mean, that you are one of many about whom there is a question mark. Now, I am not sure whether today we are going to deal with that, are we? MR. FREEMAN: Yes, we are, my Lord. MR. JUSTICE COLMAN: Whether we will get to it before the adjournment, I am not sure. It is probably last on the list, is it? MR. FREEMAN: My Lord, I cannot identify it on the list but I am told by Wilde Sapte that it is hidden amongst the Gooda Walker summons. MR. LORD: My Lord, it is the last one. MR. JUSTICE COLMAN: We are going to deal with this problem later on in this hearing and I am going to have to hear what the problems are and decide how we should resolve them. You are one of quite a large number of people in the same position and I will have to decide what course to take in relation to resolution of this problem. So could you hang on? You may be a bit bored in the meantime but if you would be so kind as to do that, then we will proceed on that basis. MR. COLFOX: Shall I state my name for the record? MR. JUSTICE COLMAN: Yes. MR. COLFOX: Colfox, C-O-L-F-O-X. MR. JUSTICE COLMAN: Thank you. MISS WICKS: My Lord, could I just assist on this particular point? MR. JUSTICE COLMAN: Yes. MISS WICKS: We were not aware until speaking to Mr. Colfox outside court that there was some discrepancy, but he is slightly different from the other Names that you are going to be dealing with later on today in that he is shown on Lloyd's list as an accepting plaintiff and that is Mr. Colfox's own position. He says he is an accepting plaintiff and Lloyd's says he is an accepting plaintiff. MR. JUSTICE COLMAN: Then there does not seem to be any issue between Lloyd's and him. MISS WICKS: No, not at the moment. What Mr. Colfox appears to be saying is that he is maintaining that he is only an accepting plaintiff because Lloyd's has accepted some conditions attached to his form of acceptance of the offer. I should just make it clear that it is Lloyd's position that it has not accepted any conditions attached to any form of acceptance. So the basis on which Mr. Colfox is an accepting plaintiff might be at issue between Lloyd's and Mr. Colfox but the fact is ---- MR. JUSTICE COLMAN: He is on the schedule in this order, is he not? MISS WICKS: He is on the schedule. MR. JUSTICE COLMAN: If he is right and I make the orders, that prejudices his position. MISS WICKS: My Lord, I do not think it can do. MR. JUSTICE COLMAN: It is both these actions, is it not, affected? MISS WICKS: Yes, my Lord. MR. JUSTICE COLMAN: If I make both these orders and he is correct in saying that Lloyd's has accepted conditions or, alternatively, that in consequence of Lloyd's not having accepted the conditions he is not an accepting Name, where do we stand there? MISS WICKS: My Lord, if the true position is that he is not an accepting Name, then his actions stand dismissed in accordance with your earlier order, he not having made an application in time. If in truth he is an accepting Name, as at the moment both Lloyd's and he contend, then he is dealt with in your order. MR. JUSTICE COLMAN: But his acceptance that he is an accepting Name masks an issue as to whether his acceptance is subject to conditions or not. MISS WICKS: My Lord, there is another possibility which, in the absence of any information (because we did not know this problem was going to arise in respect of Mr. Colfox so we have not been able to check), he may have been joined up to an action group settlement agreement and as such be obliged to withdraw his claims under the action group settlement agreement, although not having accepted his individual settlement. That would make him an accepting plaintiff for these purposes, the purposes of these actions, but would not mean that he had the benefits that he would have obtained if he had accepted an individual settlement offer. MR. JUSTICE COLMAN: Mr. Colfox, what do you say about this? MR. COLFOX: I revoked the authority of the action group to enter me into -- I see him shaking his head, but that is the case ---- MR. LORD: I agree with Mr. Colfox. He is not a party to the Gooda Walker Action Group. MISS WICKS: No, it is Evennett. MR. JUSTICE COLMAN: He is Evennett; he is certainly not in Gooda Walker! MR. COLFOX: I have not brought the paper but I revoked it. They then passed ---- MR. JUSTICE COLMAN: We are talking several weeks ago now? MR. COLFOX: No, months and months, before R&R finished. MR. FREEMAN: My Lord, I think I ought to help you here. MR. JUSTICE COLMAN: Yes, Mr. Freeman. MR. FREEMAN: Because Joanne Wicks of Lloyd's said to you, I am afraid, masks a very, very serious problem which is going to be the subject of a subsequent address to you, because a number of Names say: "We accepted the right of the action group to sign us into the AGSA in order to get this expenses refund that was being offered by Lloyd's because we knew we were accepting R&R anyway so therefore there was absolutely no purpose in us resigning from the group and thus the group signed us into the AGSA". But if of course it goes from the other end and it turns out that they were not going to be treated as an accepting Name by Lloyd's, notwithstanding that Lloyd's advised the action groups that they were to be so treated, then of course it throws into doubt whether it is proper that they should have their rights diminished by virtue of having gone into the AGSA. So it is not sufficient simply to say: "Well, he could be caught by the AGSA, or any Name could be just caught by the AGSA, therefore that is an end of the matter", because that masks the problem as to why he was in the AGSA in the first place. MR. JUSTICE COLMAN: I think we had better deal with this problem later in the morning, if we get to it this morning. So would you mind hanging on, Mr. Colfox, and we will deal with it more extensively later. I think that obviously, in view of the fact that it affects the Evennett order, you had better remain until we deal with this. MR. COLFOX: Yes. MISS WICKS: Yes, my Lord. MR. JUSTICE COLMAN: I am going to make this order but subject to having to write something special into it perhaps at a later stage to deal with Mr. Colfox's position. Now where do we go from here? Your moment has come, has it? MR. LORD: I think so, my Lord. The next 10 are in the Gooda Walker case. MR. JUSTICE COLMAN: They are all in Gooda Walker, and Wilde Sapte are extremely keen to come off the record? MR. LORD: My Lord, absolutely. There are two summonses. MR. JUSTICE COLMAN: We have this problem with the fund. MR. LORD: My Lord, yes. Before I come on to that, can I just explain what has happened in relation to the withdrawal of the claims? MR. JUSTICE COLMAN: Yes. MR. LORD: There are three individuals who need special mention. There was Mr. Sherman who, if you remember, slipped through the net on the previous occasion, but Mr. Sherman has now instructed Mr. Freeman and is in exactly the same category as Mr. Freeman's 101, and therefore he is withdrawing in respect of all of the actions other than the main action and is to continue in the main action along with Mr. Freeman's other 101 clients. So he is no longer a problem. MR. JUSTICE COLMAN: Yes. MR. LORD: My Lord, then there is the position of Mr. Colfox. On the last occasion your Lordship dismissed Mr. Colfox's claims because although he had tried to apply for directions I do not think it had actually been issued and, in any event, we were the solicitors on the record and he had not instructed us to do anything. In those circumstances your Lordship took the view that he had not complied with the unless order and therefore his claims were dismissed. MR. JUSTICE COLMAN: Yes. MR. LORD: Now Mr. Colfox is unhappy about that and wants to appeal your Lordship's decision. MR. JUSTICE COLMAN: He says he does not. MR. COLFOX: I must rise, sir, if I may, and say that I would like to give the court - as I am told the procedure is - an undertaking to disinstruct Wilde Sapte so that I can address you. I would very much appreciate it if Mr. Lord does not say anything on my behalf. MR. JUSTICE COLMAN: I am sure he will take no encouragement not to say anything on your behalf! MR. LORD: My Lord, I am happy not to say anything on Mr. Colfox's behalf. MR. JUSTICE COLMAN: Right. We will put him in the pending tray for the moment, yes. MR. LORD: My Lord, the other individual is ---- MR. COLFOX: May I interrupt and say that I would like to address the court, if I may ---- MR. JUSTICE COLMAN: Yes. But you cannot do it now. MR. COLFOX: Thank you, sir. MR. LORD: My Lord, the other individual is Mr. Pascoe. Mr. Pascoe had written to your Lordship before the last hearing, I think, saying he was somewhat confused about what was happening. MR. JUSTICE COLMAN: Yes. MR. LORD: I think he has written to your Lordship again. MR. JUSTICE COLMAN: Yes, he has. MR. LORD: Saying he is confused again. MR. JUSTICE COLMAN: Yes. MR. LORD: Certainly on the last occasion I was under the impression that his claims, along with everybody else's, had been dismissed because he had not applied for directions. MR. JUSTICE COLMAN: Yes. MR. LORD: But reading the transcript it is clear that we spoke about him and then everybody forgot about him. MR. JUSTICE COLMAN: Oh, dear! MR. LORD: So his position merely needs to be clarified. MR. JUSTICE COLMAN: Yes. MR. LORD: But my understanding is that he has not applied for directions and therefore he is in default of the unless order. But, again, there is nothing more I can really say. MR. JUSTICE COLMAN: He is unrepresented, is he not? MR. LORD: My Lord, strictly Wilde Sapte are still on the record. MR. JUSTICE COLMAN: Wilde Sapte are still nominally on the record, yes. MR. LORD: But he has given Wilde Sapte no instructions. MR. JUSTICE COLMAN: No. What order should be made about Mr. Pascoe? It should be dismissed? MR. LORD: My Lord, my understanding is that because he did not apply for directions on or before 20th December his claims would have been dismissed. I think, unless he was to come or to instruct me to say anything differently, there is nothing more that can be said about him. MR. JUSTICE COLMAN: But you have not got any specific instructions from him at all? MR. LORD: My Lord, no. MR. JUSTICE COLMAN: He says he does not understand what is going on. I am not surprised actually. MR. LORD: I think his worry is that two writs have been issued against him by Lloyd's and there are solicitors instructed in relation to that, not Wilde Sapte, and his concern is that nothing should be done in this court which would prejudice any defence he was to run in those proceedings. MR. JUSTICE COLMAN: The writs that have been issued against him are the non-accepting Name writs presumably? MR. LORD: My Lord, I assume so, yes. MR. JUSTICE COLMAN: Has he been specifically asked for instructions by Wilde Sapte? MR. LORD: My Lord, there was a telephone conversation during which my instructing solicitor was under the impression that he was happy for his claims to be dismissed. However, his subsequent letter to your Lordship, which was copied to us, would seem to indicate that maybe he is not so sure now. MR. JUSTICE COLMAN: Reading the correspondence - I am not quite sure what has happened to it now, but I have read it - there seems to be a sort of certain frisson to put it mildly, between Mr. Pascoe on the one hand and Wilde Sapte on the other as to what actually passed. I am just re-reading his 14th January letter. (After a pause): He says he was told but he could not obtain advice from Wilde Sapte. MR. LORD: My Lord, that is right in relation to the other proceedings, not in relation to these proceedings. MR. JUSTICE COLMAN: I see. MR. LORD: My understanding is that what he was seeking advice on was his defence to the Lloyd's writs. MR. JUSTICE COLMAN: Yes, I see. MR. LORD: In respect of which he has instructed other solicitors and not instructed Wilde Sapte. (After a pause): MR. JUSTICE COLMAN: It does not seem to me that I have seen any basis for taking any view other than that the order which I originally made, which would have affected him, should take effect. Accordingly, the action will stand dismissed so far as he is concerned. MR. LORD: My Lord, I think that must be right. That leaves the position that in relation to all of the actions other than the main action, subject to one small point on the E&O action, everything can now be agreed in relation to the withdrawal of the claims, or the dismissal. MR. JUSTICE COLMAN: Yes. MR. LORD: The one remaining matter concerns the 387 plaintiffs who are represented by Mr. Freeman. The E&O action is to do with trying to set aside the avoidance of the E&O cover to Gooda Walker Ltd. and Gooda & Partners Ltd. MR. JUSTICE COLMAN: I see. MR. LORD: The concern is that the claims that these plaintiffs may have against other managing agents, not on the Gooda Walker syndicate, where they were put on those syndicates through the Gooda & Partners members agency. As I understand it, Mr. Freeman just requires 14 days in order to clarify the position and it may be that there really is no problem about this at all. I simply mention it because it is the one matter that has not been finally resolved in relation to the other four actions. MR. JUSTICE COLMAN: I see, yes. MR. LORD: I think the hope is that we will not need to trouble your Lordship about it. But, if we do, we will have to come back on another occasion. MR. JUSTICE COLMAN: Yes. Mr. Freeman, that accurately reflects the position? MR. FREEMAN: Yes, my Lord. It arose because of a very helpful telephone call about ten o'clock this morning from Norton Rose who represent the 387 plaintiffs, although the action of the 387 plaintiffs was consolidated by an order some years ago with the Gooda Walker main action to be heard as one action. The matter was pointed out to me by Mr. Mackie of Norton Rose very helpfully, that nobody had seemed to have addressed before. There may be absolutely nothing in it at all, as Mr. Lord says, but I think I owe it to my client to check the point before ---- MR. JUSTICE COLMAN: You had better have a look at it, yes. MR. FREEMAN: Yes, to have a look at it, because I literally do not know whether there is anything in it at all. MR. JUSTICE COLMAN: I see. We had better put that on ice then. MR. LORD: My Lord, yes. So that leaves, I hope, just two issues. One is Wilde Sapte's application to come off the record, and the other is an issue that does not concern me but is the subject of the final summons on your list, which is the question of Mr. Hicks and Mr. Harris and what directions your Lordship should give. MR. JUSTICE COLMAN: Quite so. You are not involved in that. MR. LORD: My Lord, no. So, as far as whether or not Wilde Sapte should come off the record is concerned, I do not know if you have had a chance to see the affidavit of Mr. Rocher. MR. JUSTICE COLMAN: I have seen an affidavit but I cannot remember who swore it now. (After a pause): Yes, I have seen that. MR. LORD: The position, as I understand it, is that there are now 102 plaintiffs who are continuing in the main action. They have all instructed Mr. Freeman. None of them are providing any instructions to Wilde Sapte. As far as Wilde Sapte are concerned, they have given everything to Mr. Freeman that he has requested, other than the money. MR. JUSTICE COLMAN: How much money is there? MR. LORD: My Lord, I think it is 8.8 million. But my first submission in relation to that is that that does not affect the actual continuing conduct of the main action, which is what, in my submission, the court is concerned with. I can quite understand Mr. Freeman's desire to hold the money, but it does not affect him now taking over the reins in the future conduct of the main action. MR. JUSTICE COLMAN: If Wilde Sapte continued to have it? MR. LORD: My Lord, yes. MR. JUSTICE COLMAN: I can see that. MR. LORD: So, in my submission, it is something of a red herring in relation to our application to come off the record. In my submission, the time is now right; we are not instructed in relation to the continuation of this action, Mr. Freeman is. He now has, I believe, all the information he requires and he should therefore come on the record and Wilde Sapte should come off. My Lord, as far as the question of the money is concerned, Wilde Sapte have given an undertaking to Lloyd's in 1995. MR. JUSTICE COLMAN: Yes, I have seen it. MR. LORD: Not to pass it without giving 10 clear business days' notice. But the problem is now the Napier decision, and the position that is now being taken by Lloyd's in correspondence with Wilde Sapte is that Wilde Sapte are now constructive trustees, and indeed always have been, of those monies. The threat is that if we part with them, Wilde Sapte may be liable themselves should anything untoward happen to the monies. MR. JUSTICE COLMAN: Unless Lloyd's consent. MR. LORD: My Lord, yes. So really Wilde Sapte's position is that we will do whatever Lloyd's and Mr. Freeman between them can agree, if anything, that we should do with the money. We are more than happy to give it to Mr. Freeman but we cannot give it without Lloyd's consent. MR. JUSTICE COLMAN: What you have not really been able to ascertain is whether there is any actual dispute between Mr. Freeman on the one hand and Lloyd's on the other as to the disposition of the fund. MR. LORD: We wrote to Lloyd's as long ago as October informing them that Mr. Freeman was going to be taking over the reins and saying: "Do you have any objection to us passing the monies?", and they have never said: "You can give the monies". MR. JUSTICE COLMAN: I see that. I entirely follow. MR. LORD: So, my Lord, Wilde Sapte's hands are tied in that respect. MR. JUSTICE COLMAN: Yes. MR. LORD: But our concern today is that we should come off the record. MR. JUSTICE COLMAN: Yes, I see that. Anybody see any reason why Wilde Sapte should not come off the record? MR. FREEMAN: I see reason, my Lord. MR. JUSTICE COLMAN: Why, Mr. Freeman, do you see reason? MR. FREEMAN: My Lord, it is necessary to step back a few paces. First of all, it is necessary to remind your Lordship, purely by way of formality, that Wilde Sapte are holding this money as the fruits of the litigation in the main action, which is not under appeal, on behalf of those plaintiffs who I am to represent. It is their money until such time as a court holds differently. MR. JUSTICE COLMAN: Yes. MR. FREEMAN: There is no other basis upon which Wilde Sapte could hold the money other than on the basis that they act for the successful plaintiffs. MR. JUSTICE COLMAN: I follow, yes. MR. FREEMAN: There has been a judgment of the Court of Appeal in what is termed Napier but is better termed Woodard. MR. JUSTICE COLMAN: Woodard? MR. FREEMAN: Woodard was a successful defendant to the application by Lloyd's to retrospectively amend the Premiums Trust Deed so that it would encapsulate the litigation recoveries, and by a majority of two to one the Court of Appeal held that Lloyd's were not able to do that. Simultaneously, in circumstances which are presently now under investigation by me and others, an application was made to which none of my clients were participants. Lord Napier assures us that he was not a participant; the Outhwaite successful plaintiffs in the case that is known as Napier were also not participants - under which application was made to the Court of Appeal for leave to appeal four and a half years out of time in circumstances which so far remain clouded in mystery. The counsel representing Mr. Woodard, who had nothing whatever to do with the Outhwaite action, said there was no objection. I give you that simply by way of background because that ---- MR. JUSTICE COLMAN: Who is appealing against what? MR. FREEMAN: Lloyd's intervened, as one understands it. It is difficult, my Lord, because I am only giving you what I have been able to glean from such few documents as have so far been given to me. But the original judgment in this court by Mr. Justice Saville (as he then was) was in favour of a number of plaintiffs who were members of Outhwaite syndicates. The defendant was Outhwaite. The judgment was given in that case. Extraordinarily, none of the parties in that case, so far as we have been able to understand, were parties to this intervention in the Court of Appeal, four and a half years later, whereby an application was made to appeal out of time the judgment of Mr. Justice Saville. But the court, nonetheless, seems to have been prepared to hear it on the basis that the solicitors who were instructing Mr. Nicholas Warren Q.C., told Mr. Warren that he should not object on the basis that some arrangement had been made with Lloyd's whereby Lloyd's would only pay the costs of the Woodard appeal in the event of no objection being made to them appealing out of time. Now, I give you that by way of background so that you should know that the position is not simply that Wilde Sapte are holding money that belongs to Lloyd's. Quite the contrary, it goes further, that the order made by the Court of Appeal has not been drawn up. MR. JUSTICE COLMAN: Which order? MR. FREEMAN: An order was made, my Lord, in -- a judgment was given in, I think I am right in saying, early November. MISS WICKS: My Lord, might I assist? It is simply that not only am I instructed on behalf of Lloyd's but also I appeared in Woodard and Napier v. Kershaw cases, so I am probably better able to help than Mr. Freeman, who is obviously collecting information from a number of sources, and there are some quite substantial inaccuracies in what he is telling you. Tracing the history of this matter back to the beginning ---- MR. JUSTICE COLMAN: I am just wondering whether you ought to take it after the adjournment. Is this going to take some time? MISS WICKS: My Lord, certainly to explain the history of how we get to the present situation with the trusts under which the money held by Wilde Sapte is held, will take me a little while to explain. MR. JUSTICE COLMAN: Can you just tell me very shortly - both you and Mr. Freeman - am I right in assuming that there is a dispute between the Names, on the one hand, represented by Mr. Freeman, and Lloyd's on the other as to whether in fact Wilde Sapte is a constructive trustee of this money? MISS WICKS: My Lord, there has never been any correspondence about that. There is no summons to bring that issue before the court. MR. JUSTICE COLMAN: No. I see that. MISS WICKS: The only issue which is before you today, and the only issue which it would be appropriate for you to deal with today, is the question: does the fact that Wilde Sapte feel they are not able to release the monies prevent them coming off the record and Mr. Freeman coming on to the record? MR. JUSTICE COLMAN: Yes, I see that entirely. I entirely follow that. On the other hand, if there is an issue as to who has the beneficial interest in the fund, then somebody had better do something about resolving it. MISS WICKS: My Lord, it has already been resolved, or it is already in the process of being resolved. MR. JUSTICE COLMAN: I see. MISS WICKS: The question as to whether or not the beneficial interest in the fund belongs to the Names or their Premiums Trust Deed trustees is the subject of the Napier v. Kershaw and the Woodard action which came before the Court of Appeal. The Court of Appeal held in Lloyd's favour insofar as they held that the unamended Premiums Trust Deeds did catch the litigation recoveries. That is the present situation. So, as the law presently stands, that money belongs to the Premiums Trust Deed trustees and that will remain the law until such time as either the time for appealing expires or ---- MR. JUSTICE COLMAN: Appealing to the House of Lords? MISS WICKS: Appealing to the House of Lords expires or ---- MR. JUSTICE COLMAN: When will that be? MISS WICKS: Mr. Freeman is right to say that the order has not yet been drawn up. MR. JUSTICE COLMAN: The order has not been drawn up yet, so time has not started to run. MISS WICKS: It has not started to run yet. MR. JUSTICE COLMAN: Yes, I follow. MISS WICKS: So in relation to the beneficial interest that is quite clear. At the moment we have Court of Appeal authority, and Mr. Woodard who was joined in the Lloyd's v. Woodard action was made a defendant representative of all the Names in the Lloyd's market. MR. JUSTICE COLMAN: I see. MISS WICKS: So it is not simply as a matter of authority but as a matter of res judicata it has been determined as between Lloyd's and all Names, including those whom Mr. Freeman represents. MR. JUSTICE COLMAN: I entirely follow, yes. MISS WICKS: Just to explain, and I will take this very quickly, my Lord, the question of what impact that has on Wilde Sapte's position has also been determined as a matter of res judicata between Lloyd's and the Names which Mr. Freeman represents from the Gooda Walker Action Group. What happened was this: in the Woodard action at first instance it went before the Vice-Chancellor and the Vice-Chancellor held against Lloyd's. He held that the money belonged beneficially to the Names. MR. JUSTICE COLMAN: Yes. MISS WICKS: Following that decision an application was made, an action was brought in fact, the plaintiffs to which were Wilde Sapte as solicitors, and Mr. Deeny representing all the members of the Gooda Walker Action Group, i.e. including those whom Mr. Freeman now represents. They made an application to be permitted to distribute the monies to the Names in the light of the Vice-Chancellor's decision. The Vice-Chancellor held that as the matter was subject to appeal at that stage, he had no jurisdiction to permit such distribution to be made. So although he had made up his own mind that they were not trust monies, he held that there was no jurisdiction. So we have two matters which have already been determined as between Lloyd's and the Gooda Walker Names. One is that the money is trust money, and two is that the Wilde Sapte are not permitted to distribute those monies. So that is the dispute. MR. FREEMAN: My Lord, you asked a question: is there any dispute between Wilde Sapte and the Names that I represent as to the current state of the monies? There is none. MR. JUSTICE COLMAN: No, I did not ask that question. I asked whether there was any dispute between Lloyd's. MR. FREEMAN: I beg your pardon, Lloyd's. There is not any dispute. As the position presently stands, Wilde Sapte have given certain undertakings (which you have seen) to preserve the position pending any application to the House of Lords that may be made against the order which has not as yet been drawn up. My firm offers - and Wilde Sapte have explained the position through to Lloyd's - precisely the same undertakings to Lloyd's as Wilde Sapte have presently given. So the funds are preserved. MR. JUSTICE COLMAN: Yes. MR. FREEMAN: The funds will be kept exactly in the state that they are now. If the House of Lords makes a ruling which permits it to be sent elsewhere, that is something entirely different. But there is another very important matter of which Lloyd's are aware, and that is third party rights: the questions of estoppel that arise in the context of this order which -- I understand the reason it has not been drawn up is because specifically of rights of estoppel in favour of assignees, PSL underwriters, and so on. If I may just explain to you, one matter we know that the court ---- MR. JUSTICE COLMAN: I do not see how this affects Wilde Sapte's position. MR. FREEMAN: Well, it does, my Lord, because ---- MR. JUSTICE COLMAN: It cannot do. MR. FREEMAN: All I am saying, my Lord, is that it does affect it for this reason: Wilde Sapte should be entitled to come off the record and that means ceasing to act for the Names for all purposes. MR. JUSTICE COLMAN: Yes. MR. FREEMAN: That means any monies that they hold for their clients - and they hold them for their clients and A.N. Other in the context of the freeze that is offered by the undertakings - should be passed to the solicitors who are acting for the plaintiffs. MR. JUSTICE COLMAN: That is not the solicitors' rule of practice. MR. FREEMAN: It is not a rule of practice, my Lord, but it seems to me to be a proper rule that you cannot hold money for a client that you do not act for any more. Where we are offering, as we are offering ---- MR. JUSTICE COLMAN: It depends on the terms on which you hold it, does it not, Mr. Freeman? If the money is held specifically by a solicitor pursuant to undertakings which he has given in his professional capacity to hold in an escrow account to another party, and he holds that money on terms expressed in the undertaking, the fact that there are claims both by the other party and by, in this case, the Names, does not, as it seems to me, prevent the solicitor nonetheless ceasing to act for the Names in a totally different capacity. MR. FREEMAN: With great respect, my Lord, that cannot be right because he received the instructions from his clients to hold the money upon certain terms. I wonder if I could hand you up, my Lord ---- MR. JUSTICE COLMAN: He is still holding the money on the same terms. MR. FREEMAN: My Lord, can I invite your attention to a letter from Wilde Sapte addressed to all of those I represent, dated 15th October. (Same handed). MR. JUSTICE COLMAN: I will take this at five past two. MR. FREEMAN: Perhaps over the luncheon adjournment, my Lord, could I ask you just to glance through it? I think you will find it quite helpful in the context of what you have been saying. (Adjourned for a short time) (There is no recording until this point:) MR. JUSTICE COLMAN: ..... there is an issue as to whether the Names themselves, or indeed Lloyd's, have a beneficial interest in the fund in question which cannot be resolved between Lloyd's and the Names in question, then application can be made to this court for that issue to be determined. I do not consider that it is appropriate that anything should be said by me or order made which would affect the current tenure of the fund by Wilde Sapte pursuant to the undertaking which they have given to Lloyd's. So far as their claim to make charges in respect of holding the fund is concerned, that will no doubt be a matter between Wilde Sapte and Lloyd's; the latter, if they claim a beneficial interest in the fund, will no doubt have a position and a view on that claim by Wilde Sapte to be entitled to make deductions from that fund. MR. LORD: My Lord, I am obliged. I think that is the end of our involvement. MR. JUSTICE COLMAN: I think that is. MR. LORD: But there is still the matter of the directions in relation to Messrs. Harris and Hicks. MR. COLFOX: Is now a good time for me to address you, my Lord? MR. JUSTICE COLMAN: We are dealing with Mr. Harris and Mr. Hicks. Unless you are called either ---- MR. COLFOX: Well, I am a conditional acceptor as well. MR. JUSTICE COLMAN: I do not know anything about Mr. Harris or Mr. Hicks until somebody tells me about them, so could you just wait for a moment? MR. COLFOX: Certainly. MISS WICKS: My Lord, I should explain that the summons for directions is in fact Wilde Sapte's summons because they are formally on the record, and were formally at the time of the summons on the record, for Mr. Harris and Mr. Hicks ---- MR. JUSTICE COLMAN: And still are. MISS WICKS: They still are, that is right. MR. JUSTICE COLMAN: The order has not been drawn. MISS WICKS: Absolutely, my Lord, that is right. They are represented, as your Lordship is aware, by Mr. Freeman but perhaps it would assist if I started on the question of directions? MR. JUSTICE COLMAN: Yes, I think it would. MISS WICKS: As your Lordship is aware from the last occasion on which this was before you, both Mr. Hicks and Mr. Harris attached conditions to their form of acceptance of the offer. MR. JUSTICE COLMAN: Yes. MISS WICKS: Lloyd's wrote to them saying that it did not accept conditional forms of acceptance, but both now maintain, as I understand it, a binding contract has come into existence - how, I am afraid, I do not know for sure - which binds Lloyd's to accept those conditions, and that issue needs to be resolved before it can be known what progress can be made in these actions in relation to their claims. MR. JUSTICE COLMAN: Yes. MISS WICKS: Briefly, my Lord, Lloyd's goal in all of this is to have the matter dealt with as speedily as possible, and for that purpose Lloyd's would simply want to see what the case it has to meet is in the first place and we would propose that Mr. Harris and Mr. Hicks serve points of claim within 10 days. Lloyd's could then reply serving points of defence 10 days thereafter, with any reply if necessary 10 days after that. Then the matter could come back before your Lordship. It might not be necessary for the matter go any further. It might be that an application to strike out could then be made. MR. JUSTICE COLMAN: Yes. MISS WICKS: On the other hand, there might be some form of limited discovery which would be appropriate, but really until we have seen what Mr. Hicks and Mr. Harris' cases are, it is difficult to know what the next stage would be. MR. JUSTICE COLMAN: Yes. MISS WICKS: Mr. Freeman has not indicated either a positive assent or dissent from those proposals. MR. JUSTICE COLMAN: He was very much up against it, remember, at the last hearing. MISS WICKS: That is right. MR. JUSTICE COLMAN: Because he had a huge workload to deal with in relation to these Names. MISS WICKS: Yes. MR. JUSTICE COLMAN: So we do not know his position at the moment. MISS WICKS: No, my Lord. Indeed he has not revealed that in correspondence which has taken place until now except to say that he thought 10 days for the service of points of claim by his clients might be rather too short. As to that, Lloyd's position, whilst not wanting to be difficult, is simply that we would like to get this matter resolved as soon as reasonably possible. MR. JUSTICE COLMAN: We know that Mr. Colfox is equally involved in the same sort of point. I am not sure whether it is an identical point. MISS WICKS: My Lord, he is not involved in quite the same sort of point. We have managed to ascertain what happened over the luncheon adjournment. MR. JUSTICE COLMAN: I see. Can we deal with that later then, if you say it is a different point? MISS WICKS: Yes, my Lord, I think that might be appropriate because it is quite separate I think from Mr. Hicks and Mr. Harris. MR. JUSTICE COLMAN: All right. Can I just ask you this? Is the Harris and Hicks position unique? MISS WICKS: My Lord, what I can explain is this: a number of Names when returning their forms of acceptance wrote something on it. Some of those bits of writing were not truly conditions attached to the form. They were simply ---- MR. JUSTICE COLMAN: Comments. MISS WICKS: ---- comments, queries, that sort of thing. But some of them were conditions attached to the form. Lloyd's wrote to all the Names which they identified as attaching true conditions to the form to say: "We are not accepting your form of acceptance. You may join the offer on same terms as everybody else and if you wish to do so, please send us a new form but, if you do not, we are going to treat you as a non-accepting Name". MR. JUSTICE COLMAN: Yes. MISS WICKS: Some Names responded to that by signing up to the offer on the same terms. There are, however, a number of Names who have not responded to that letter. MR. JUSTICE COLMAN: So have left it open. MISS WICKS: Have left it open. It may be that they accept Lloyd's position which is that they are not accepting Names. On the other hand, we know that Mr. Hicks and Mr. Harris in the Gooda Walker case, and it appears Mr. Colfox, take issue as to the status of their acceptance. But, apart from Mr. Colfox, who also appeared before Mr. Justice Cresswell this morning on behalf of his father, he and his father, Mr. Hicks and Mr. Harris are the only Names that we are aware of who are taking up the position in an open way that they are in dispute with Lloyd's about the status of their acceptance. But I know that Mr. Freeman says he acts for a number of other Names, but there is not an issue there as yet that has come about. So we do not know how many there will be an issue with, and Lloyd's sincerely hopes it is only the four that we have so far heard of. MR. JUSTICE COLMAN: Yes, I follow. MR. FREEMAN: From our point, my Lord, there is a big wodge of correspondence with a number of Names that has passed between Michael Norwell at Lloyd's and a number of Names but I do not think that really matters, because it does seem to me that Mr. Hicks and Mr. Harris may well be representative of the basic issues. MR. JUSTICE COLMAN: Yes. MR. FREEMAN: Miss Wicks says she does not really know what the form -- the form of letter I am holding it my hand is that Wilde Sapte were notified, as were the members' agents of Mr. Hicks and Mr. Harris, that Mr. Harris and Mr. Hicks were accepting Names. There are no conditions, there are no ifs, there are no buts, they were told that they were accepting Names. Indeed, it is on that basis that they have acted throughout until 16th November when they were suddenly categorised as conditional Names, long, long after the final date of notification of acceptance. MR. JUSTICE COLMAN: You mean the conditions were withdrawn or the comments were withdrawn? MR. FREEMAN: Very briefly, my Lord, there was a thing called tranche four. Tranche four was an extra credit that was to be allotted to Names. Now, although it does not apply to all the Names with these conditions, Harris and Hicks both said: "My acceptance is conditional upon what you have offered me by way of tranche four actually filtering through in context of what I have to pay to you". The form came back stamped as accepted. Wilde Sapte were advised that they were to be treated as accepting Names and the members' agents of the two Names in question were told that they were to be treated as accepting Names. That is what happened until 16th November, and I remind your Lordship that the final date for acceptance was 30th September, that they have suddenly been categorised as conditional Names and Wilde Sapte received another letter saying: "The following are conditional acceptances", long, long after the AGSA had been signed and the Names had for all purposes believed that they were indeed treated as accepting Names. That is where we stand and that is the issue that will be before you, in a nutshell; there are surrounding pieces of paper and so on. That is the issue, and it applies to a number of other Names. I am surprised that Miss Wicks says she did not know of them, but certainly Mr. Norwell at Lloyd's knows of them because ---- MR. JUSTICE COLMAN: Are we talking about a handful? MR. FREEMAN: I do not know. I would say that probably on the records that are being kept at a central office there are about 70 that I am aware of but there may be others. MR. JUSTICE COLMAN: 70? MR. FREEMAN: 70, yes. It may be more. Some of them may have fallen out, as Miss Wicks said. They may have decided that they were going to write back further letters. I just cannot give you the ---- MR. JUSTICE COLMAN: No. MR. FREEMAN: But for the purposes of today - and if the position changes I will come back to your Lordship and say: "I think we ought to add a few more because there are some variations", or what have you - we can deal only with Mr. Harris and Mr. Hicks. MR. JUSTICE COLMAN: If I made directions in respect of Mr. Harris and Mr. Hicks today, could it be on the basis then if there are Names who have got some materially different position raising a dispute as to whether they are assenting or dissenting, claims by them for relief can be consolidated with the Harris and Hicks proceedings? Would that be convenient? MISS WICKS: My Lord, I am not sure that that would be a very convenient way of dealing with it. The difficulty that we are going to have is that obviously this is a matter of contractual analysis: has there been an offer, has there been an acceptance? MR. JUSTICE COLMAN: Yes. MISS WICKS: It is all going to depend on the particular facts applicable to the particular Names in question. MR. JUSTICE COLMAN: Yes, who wrote what to whom, when? MISS WICKS: Who wrote what to whom? Who said what to whom? It is going to be very difficult to deal with them in any global way, and the difficulty is exacerbated because of course we are dealing with Mr. Harris and Mr. Hicks here now because they are Gooda Walker Names and they do not know whether they are obliged to withdraw their proceedings against the defendants or not. But that may not be the issue -- it will not be the issue in respect of non-Gooda Walker Names and there may well be different issues in relation to different Names. So, my Lord, tempting as it is to try and deal with it all in one go, I think that is really going to create a large number of difficulties. MR. FREEMAN: I think, my Lord, Miss Wicks, if I may say so, just misunderstood the position. The proceedings have been withdrawn. There is no question of them not being withdrawn, it is simply a question of the escrow monies which you have just been hearing about. There is no question of the proceedings being kept open, the proceedings are withdrawn. You heard that there is no issue in the proceedings any more. We are only talking about a right whether or not the escrow funds which are held presently by Wilde Sapte for the credit of Mr. Hicks and Mr. Harris will stay wherever in the escrow or should be passed over to Lloyd's. That is the only issue there, and I think the same position would apply across the board. I do not there are any other issues, so far as I am aware of. MISS WICKS: My Lord, I am afraid that wholly misrepresents the position. I have had an opportunity of reading a transcript of the hearing before your Lordship on the last occasion and it is quite clear from that, that the issue has been raised in this way because it is said that Mr. Hicks and Mr. Harris are in doubt as to whether or not they are obliged to discontinue their actions against the defendants. MR. JUSTICE COLMAN: Is that what it said? I cannot remember, I am afraid. I have not seen a transcript. Nobody ever gives me a transcript! MISS WICKS: My Lord, I am sure we can provide you with a copy of that. MR. FREEMAN: If that is what the transcript says, either the transcript -- Mr. Lord knows that you made an order, my Lord. The proceedings have been now withdrawn. There are not any proceedings ---- MR. JUSTICE COLMAN: I did not think there was an issue as to whether they had withdrawn from the action. MISS WICKS: My Lord, it is my understanding from reading the transcript that that is precisely the issue which needed to be dealt with and which was held over to today for directions. MR. JUSTICE COLMAN: Just a moment. MISS WICKS: It is certainly nothing to do with the monies being held in escrow. MR. JUSTICE COLMAN: What was the order that was made last time round about Harris and Hicks? MISS WICKS: My Lord, I do not have a copy of the order as drawn, I am afraid. I am not sure if one was drawn up. MR. JUSTICE COLMAN: Oh, it has not been drawn up yet. That is why you have not got it. It has not been drawn up, that is absolutely right. So you have to look at the transcript, I am afraid. MISS WICKS: Yes, my Lord. Does your Lordship have a copy of the transcript up there? MR. JUSTICE COLMAN: No. I have just said I do not have a copy, unless somebody has given it to me without my knowing. MISS WICKS: I thought perhaps Mr. Lord had included it with his skeleton argument. MR. JUSTICE COLMAN: There is so much bumph in this case. MR. FREEMAN: My Lord, with respect, does it matter? The position is that you have dismissed all the claims. The actions have been withdrawn. MR. JUSTICE COLMAN: Or dismissed, as the case may be. MR. FREEMAN: With the exception of the main action in which Lloyd's is not involved at all. All we are talking about, to repeat for Miss Wicks' benefit, is this: if they are accepting Names, which they contend themselves to be, the funds which are held in escrow on their behalf go to Lloyd's and there is no question about it. If ultimately Lloyd's are found to be right and they are not to be treated as accepting Names, then because they were lucky enough to have resigned from the AGSA as opposed to the position of Mr. Colfox, you may remember earlier on, then they are not caught by the AGSA and the funds therefore remain to be dealt with within the escrow proceedings to which I was referring your Lordship earlier on. That is the only issue, and to suggest that somehow there has got to be a steamroller towards this -- my Lord, I am going to resist that, because it is wholly unnecessary and just is making additional work and possibly counterproductive work if I do not have an opportunity to look at the circumstances of the others so that we can look at it in the round rather than just two people on their own. My Lord, that is the way I ask you to look at it. MR. JUSTICE COLMAN: I am going to order that there should be directions in relation to the definition of the issues between Harris and Hicks on the one hand and Lloyd's on the other. But I am not going to make any further directions beyond pleading stage because I want to know to my own satisfaction what other disputes as to acceptance exist. I will, if necessary, order that they should all be heard together. It seems to me that there may be differences in the correspondence and so on which pass between the relevant parties, but I am not going to have a situation where there are 15 or 20 separate actions all separately considered, separately tried, subject to separate summonses for directions. I am afraid that is not acceptable to the court, and they will all be dealt with together, this lot. If Lloyd's do not like it, I am afraid they will just have to lump it. MISS WICKS: My Lord, might I make just a suggestion, which is this: we are here for a summons in the Gooda Walker action. This is an issue between ---- MR. JUSTICE COLMAN: Yes. Well, Harris and Hicks people are in that action. MISS WICKS: Yes, my Lord. Back to menu MR. JUSTICE COLMAN: Yes. I am going to make an order in that, and so far as any other Names are concerned who are in dispute, whether in the Gooda Walker syndicates or any other syndicates at all, they can apply subsequently and separately and the application will be to me and I will then consider whether to deal with them together with the resolution of the dispute which relates to Mr. Harris and Mr. Hicks. MISS WICKS: Thank you very much, my Lord. Can I just clarify for my own purposes, because I did not catch what your Lordship said. The issue between Mr. Hicks and Mr. Harris you have left for an issue to be brought before you as to what the issue is as between them? MR. JUSTICE COLMAN: No, I am going to make an order for pleadings right now. MISS WICKS: For pleadings, thank you very much. MR. JUSTICE COLMAN: Yes, and nothing more. MR. FREEMAN: My Lord, in that connection I am happy with the suggestion which Miss Wicks made in principle, but I would ask for 28 days. I do not want to be restricted to 10 days. I want to have a chance to look at this in the round, and there are many other ---- MR. JUSTICE COLMAN: Points of claim. MR. FREEMAN: Points of claim. I am not sure whether the points of claim should not come from Lloyd's because it is Lloyd's that are changing, as far as we are concerned -- I think it should be Lloyd's who are the plaintiffs and Hicks and Harris who are the defendants. Lloyd's are putting forward a positive case that the acceptance which is in the form of a stamped document is not an acceptance. I think it is up to Lloyd's to make the claim that they are not acceptors, having notified Gooda Walker -- I remind your Lordship this is a claim in Gooda Walker. They notified Gooda Walker unequivocally that these were accepting Names. Now, in Gooda Walker they are now saying they are not accepting Names. It is up to Lloyd's, my Lord, in my view, to make the running and to explain why the piece of paper that they gave to the Gooda Walker solicitors, Wilde Sapte, in fact should not be relied upon by Gooda Walker. That is my position, my Lord. MR. JUSTICE COLMAN: Do you want the last word? MISS WICKS: Thank you, my Lord. I do not wish to be difficult but it is a question of contract and the people who are alleging that a contract has come into existence are the Names. It is for them to set out: "We made an offer on [blank] date by [blank] and it was accepted by Lloyd's acting in a particular way". It does not make much sense for Lloyd's to have to aver a negative in the points of claim in the first place. MR. JUSTICE COLMAN: All the relief will be declaratory, will it not? MISS WICKS: My Lord, it is, if the issue ---- MR. JUSTICE COLMAN: The prayer to the points of claim will be in declaratory form only, will it not? MISS WICKS: My Lord, it depends what the issues are that the Names want to raise. If the only issue between the Names and Lloyd's is whether or not the Names are obliged to withdraw their actions against the defendants, then the matter can be dealt with very simply. If, on the other hand, it is a question of whether or not the Names are entitled to other benefits of the offer and subject to other liabilities of the offer, for example the liability to pay the money to Premiums Trust Deed trustees, then it might be that actually it is not just declaratory relief which is being sought. MR. JUSTICE COLMAN: I think it will be declaratory relief, will it not, Mr. Freeman? MR. FREEMAN: My Lord, indeed. The position of Gooda Walker, if I could just wear the Wilde Sapte hat for a moment, is that they were notified that these people within the Gooda Walker action, which is all your Lordship is going to consider today, is that they had accepted the offer. Therefore that Wilde Sapte were bound to pay that money to Lloyd's as a result of an acceptance of the offer. That is as we are here today. It is Lloyd's that is now saying: "Well, in spite of the fact that we advised you, Wilde Sapte, of that position, it is not the position". It is a case they have to make. Offer and acceptance, exactly as Miss Wicks said, has been made. They are now seeking to undo the offer and acceptance which I hold in my hand. MR. JUSTICE COLMAN: I think it is six of one and half a dozen of the other. In the interests of expedition, Lloyd's can be plaintiffs. 10 days, 7 days, 14 days? MISS WICKS: My Lord, we are happy to deal with the matter in 10 days. MR. JUSTICE COLMAN: 10 days. MR. FREEMAN: 28 days, my Lord, please, to reply. MR. JUSTICE COLMAN: Any objection? MISS WICKS: My Lord, we would like this matter to be dealt with as quickly as possible. I do not wish to make things difficult for Mr. Freeman, but if we are going to take 10 days, I do not see why he should not be also able to deal with the matter in 10 days. MR. JUSTICE COLMAN: 21 days, points of defence. Points of reply? MISS WICKS: Yes, if necessary. My Lord, that might take a little bit more time to analyse since that will be the first time we will know a positive case from Mr. Hicks and Mr. Harris so I would ask for 28 days on that. MR. JUSTICE COLMAN: 14. That is as many directions as I shall give in relation to the resolution of this issue. The parties upon the close of pleadings will -- I think "take out" a summons for directions; it is impossible to say "restore" it because this is not really a summons for directions at all. Take out a summons for directions. That will be down to the plaintiffs for further directions. But at that summons, Mr. Freeman, you must be in a position to indicate to the court whether the 70 (or however many) who have generically this kind of dispute are prepared to ride on the resolution of this particular Harris and Hicks matter, or want separate bespoke treatment. MR. FREEMAN: Categorisations, my Lord. I hope that I have been helpful by getting instructions from Harris and Hicks to be here today. MR. JUSTICE COLMAN: Yes. MR. FREEMAN: I am a solicitor, I take instructions. I know there is a central register of some 70 Names. I do not know and cannot tell your Lordship that those people will want to instruct me. What I can do is to advise those who are keeping the central register of what your Lordship said today. I can do no more than that. MR. JUSTICE COLMAN: Well, I would encourage that. We will know perhaps better where we stand. Now, at long last, I can hear, Mr. Colfox. Mr. Colfox, you have heard roughly what has been going on about this question of the dispute as to whether a Name is an assenting Name or a non-assenting name. It seems to me, subject to anything you may say, that you have the same kind of dispute as we have been talking about in relation to Harris and Hicks. Now, the question is: do you wish to abide by or at least do you wish to allow your position to rest upon the decision in the Harris and Hicks matter, or do you want a separate treatment exercise joined up with those proceedings in the sense that the court would hear everything together and your position would be separately considered? MR. COLFOX: I would like the latter option if possible, sir. MR. JUSTICE COLMAN: The latter option is operable but if, and only if, you can either run the pleading system yourself or get legal representation for that purpose. MR. COLFOX: My Lord, I can presumably instruct Mr. Freeman? MR. JUSTICE COLMAN: You can indeed. MR. COLFOX: May I raise one issue? Back to Menu MR. JUSTICE COLMAN: You do not have to make a final decision on this now unless you want to, but what I would say is this: I would expect that if you are going to instruct Mr. Freeman and take part in these proceedings, then you must give notice to Lloyd's to that effect within a very, very limited time indeed so that they will know what they have to do in relation to the pleadings which arise in this case. The nature of the notice which you must give to Lloyd's for this purpose must include not only the fact that you intend to instruct Mr. Freeman or some other firm of solicitors, but it must also include a very brief statement of what you maintain to be your position vis-a-vis the R&R settlement. MR. COLFOX: Yes. Can I ask you a question? MR. JUSTICE COLMAN: Yes. MR. COLFOX: I attempted to make an application to the court in response to advice that I had received from Wilde Sapte for directions, the purpose of which was to preserve my position. MR. JUSTICE COLMAN: Yes. MR. COLFOX: I have read the transcript and it appears that despite urges from Mr. Bright, who was one of the counsel for the defendants, the solicitors or the counsel instructed did not consider that he had been properly instructed to put in this application, the purpose of which is to defend my position. MR. JUSTICE COLMAN: Was this before me? MR. COLFOX: Yes, my Lord. MR. JUSTICE COLMAN: This was the other week? MR. COLFOX: 20th December. MR. JUSTICE COLMAN: Yes. MR. COLFOX: The purpose of that application was to preserve my legal rights. MR. JUSTICE COLMAN: Was that in a Gooda Walker environment? MR. COLFOX: Yes, this is this case. MR. JUSTICE COLMAN: I see, yes. MR. COLFOX: The issue was raised by Mr. Bright who asked through your Lordship whether counsel had instructions from me and he said he had no instructions from me to put in the application, but you had in your unofficial capacity a copy of an application for directions signed by me expressing myself to be a litigant in person. MR. JUSTICE COLMAN: I did? MR. COLFOX: I expressed myself to be a litigant in person. You had a copy, it was handed to you. MR. JUSTICE COLMAN: Did I? I see. MR. COLFOX: It is on the transcript. My worry is to preserve my rights in the litigation. MR. JUSTICE COLMAN: Yes. MR. COLFOX: I wonder if it is possible to make the order that you are going to make about conditional acceptance so that it can reserve my rights for a limited period of time. MR. JUSTICE COLMAN: As to whether you have in fact withdrawn or not withdrawn, you mean? MR. COLFOX: That is correct, my Lord. MR. JUSTICE COLMAN: Because, depending upon the determination of this other issue, the matter of withdrawal will be resolved. Is that how you put it? MR. COLFOX: If it is determined that I am not a conditional acceptor or an acceptor, then I would like to be able to take the advice that I have asked from Wilde Sapte which has not yet been given to me and make a decision as to whether I should continue the litigation or not. MR. JUSTICE COLMAN: Has anybody got any submissions on this? MR. LORD: My Lord, can I just tell you what I think happened on the previous occasion? Mr. Colfox is absolutely right. He filled in a form, of which I have got a copy, the standard form for directions as a litigant in person. Your Lordship had it before you. I showed it to you and we discussed it, and at that stage your Lordship I think then formed the view that that was not a sufficient application for directions and therefore Mr. Colfox was in breach. MR. JUSTICE COLMAN: I see. Yes, I do have a faint recollection about this. MR. LORD: Mr. Bright then rose at the end of the hearing and said he just wanted to clarify the position in relation to Mr. Colfox and he in particular asked me whether or not I was making an application on behalf of Mr. Colfox for any directions, to which the answer was no because I had no instructions to do so. That is the position. As I understand it, what Mr. Colfox now wants to do is either to reverse the fact that his claims have been dismissed or to appeal your Lordship's order. MR. JUSTICE COLMAN: Yes. MR. LORD: My Lord, I am not going to say anything more on behalf of Mr. Colfox. MR. JUSTICE COLMAN: What about Lloyd's? MISS WICKS: My Lord, Mr. Colfox is interested in two of the applications before you today. He is also a party to the Evennett proceedings and it was in that context that he first spoke to you. We have investigated Mr. Colfox's position in relation to Evennett over the short adjournment and the position in relation to that is that he is a signatory to the action group settlement agreement so that whatever the position in relation to his individual acceptance he is obliged by that agreement to withdraw his litigation. MR. JUSTICE COLMAN: So far as Evennett is concerned? MISS WICKS: So far as Evennett is concerned. So that, it seems to me, gets rid of any issue in the Evennett litigation. It may be that there is an issue between Lloyd's and Mr. Colfox which may arise at some future date if there is a difference in Lloyd's and his perception of his individual settlement offer, but that has not yet arisen and does not yet need determination. It certainly does not need determination in the Evennett litigation because both Lloyd's and Mr. Colfox in that are of the same mind, namely that he is obliged to withdraw his claims. In relation to the Gooda Walker action, I am not sure what the position is because until Mr. Colfox came along today I do not think we were anticipating there was a difficulty with him in relation to which Lloyd's would be interested. But if I could just take some brief instructions, my Lord, I might be able to help you further. (After a pause): MR. JUSTICE COLMAN: I think the sensible thing is to re-open the withdrawal on the Gooda Walker judgment or put it on ice at any rate until everybody has had an opportunity of investigating the position further. MISS WICKS: My Lord, that might be something in relation to which the defendants to the action have a great deal more to say than Lloyd's. After all Lloyd's is not actually a party to that action. MR. JUSTICE COLMAN: I see that entirely. MISS WICKS: We are simply here to assist your Lordship in determining the issues as between the plaintiffs and the defendants. MR. JUSTICE COLMAN: Yes. Mr. Colfox, I think the sensible course here is for us to reconsider the position of your withdrawal if necessary on a future occasion when you have had an opportunity, if you want to take this course, of discussing the matter with Mr. Freeman and then we can see exactly where we stand here. I do not feel able to say at the moment that you have actually finally withdrawn from the main action or not. I think we shall just have to see how the thing develops. Can we leave it at that? I do not want to say anything which will prejudge this question at this stage. MR. COLFOX: One issue is that I did revoke the authority of the action group, the Evennett Action Group, so would it be possible to leave that on ice as well? MR. JUSTICE COLMAN: But you did actually sign the Evennett Action Group settlement agreement, did you not? MR. COLFOX: I assume it would have been signed by the action group and not signed by me. MR. FREEMAN: My Lord, can I help on that? MR. JUSTICE COLMAN: Yes. MR. FREEMAN: I think I ought to help, my Lord. MR. JUSTICE COLMAN: The individual Names of course did not sign, did they? MR. FREEMAN: No, they did not, my Lord. It was signed by the solicitor. There is a problem there because - I do not know - if, when Mr. Colfox's position is looked at, he was signed into the AGSA because, if he was accepting R&R, all Names by and large signed were signed into the AGSA -- there would be no point in them not signing the AGSA and thus losing their right to various recoveries which Lloyd's were making available if they were accepting R&R as a whole. Therefore I think that if the one is dependent upon the other, if you are holding one position open, to be fair to him I think perhaps I would say, simply to help ---- MR. JUSTICE COLMAN: Can we leave it on this basis? Mr. Colfox's present intention is to instruct your firm. If he is going to be involved in the Harris and Hicks thing, that is no doubt something upon which he will get advice. I am not going to say anything, yes or no, in relation to that at this stage. But if he is to be involved in it then there has got to be some pretty speedy movement on that and I think Lloyd's ought to be given notice if he is going to be involved in that lot of proceedings conjointly by way of, I do not know, consolidation or trial at the same time. MR. FREEMAN: He can simply be added to the summonses which are being issued. MR. JUSTICE COLMAN: Quite so, but Lloyd's have got to have notice. Remember they are the plaintiffs. MR. FREEMAN: If I am instructed, my Lord, they will have very quick notice. MR. JUSTICE COLMAN: Yes, can we say close of business Tuesday? MR. FREEMAN: Yes, my Lord. MR. JUSTICE COLMAN: Very good. MR. COLFOX: My Lord, if I instruct a different firm ---- MR. JUSTICE COLMAN: Close of business Tuesday. MR. COLFOX: Still close of business Tuesday? MR. JUSTICE COLMAN: Yes. MR. LORD: My Lord, can I just clarify the position in relation to Mr. Colfox? MR. JUSTICE COLMAN: Yes. You want to know whether you represent him or not? MR. LORD: My Lord, I am pretty sure Mr. Colfox wants to know as well. My understanding is that he does not want Wilde Sapte to represent him. MR. JUSTICE COLMAN: No, I do not think he does. MR. LORD: And we have ceased to act for him in relation to anything that may happen in the future in relation to this litigation. MR. JUSTICE COLMAN: Yes. That is all right, is it not, Mr. Colfox? MR. COLFOX: One of the directions I would be asking for is to join them in the action if necessary, so I would not want them to act for me. MR. JUSTICE COLMAN: I can quite see that. That would be conflict of interest of a classic nature. MR. BROWN: My Lord, if I could just address you on one point? MR. JUSTICE COLMAN: Yes. Who have you got the misfortune to act for? MR. BROWN: For the errors and omissions insurer defendants, who I think now just have possibly Mr. Colfox in their action as a plaintiff, as your direction -- well, I would like clarification because your direction so far just relates to the main action. His action against my clients was dismissed on 20th December because there were no instructions to Wilde Sapte to pursue the E&O insurers on behalf of Mr. Colfox. I am not too sure what Mr. Colfox's position is insofar as my action is concerned, and I think the same relates to Frazer. MR. LYON: My Lord, it will be the same in the auditors' action and also the same in the brokers' action. I am not sure if there is anybody here this afternoon on behalf of the brokers. MR. JUSTICE COLMAN: It just shows what they are missing! MR. COLFOX: My Lord, my position is that they must instruct the person who they have a deal with, which is Lloyd's, to honour the agreement and they are in a difficult position because I wish to keep the litigation running a little bit longer. There is a very simple thing that they can do. MR. JUSTICE COLMAN: What is that? MR. COLFOX: They are parties to the settlement agreement and they can make their feelings known to Lloyd's and settle this outside the court. MR. JUSTICE COLMAN: It is not down to Lloyd's. No. The fact of the matter is that so far as the errors and omissions insurers and the auditors are concerned, your position vis-a-vis those proceedings is the same, as I understand it, as your position vis-a-vis the main Gooda Walker proceedings? MR. COLFOX: Correct. MR. JUSTICE COLMAN: The future development of that position will depend upon the resolution of the assent/dissent issue. MR. COLFOX: Yes. Back to menu MR. JUSTICE COLMAN: When the policy decision was taken by this court to bring the Lloyd's litigation to as speedy a close as possible by making orders giving limited amounts of time for decisions to be taken by non-assenting Names to withdraw, or alternatively have their actions dismissed, it was not envisaged that there would be issues arising as to whether Names were assenting or non-assenting. Since this situation is a new situation and has developed in the course of the last two working weeks, it seems to me that a somewhat different policy should be adopted. It is appropriate that if there are genuine disputes between the Names on the one hand and Lloyd's on the other as to whether those Names are assenting or non-assenting, those disputes should be resolved expeditiously but, until they are resolved, it is unfair that the Names concerned should be put to their election as to whether to withdraw or have their actions dismissed. In those circumstances it seems to me that it is up to all parties to cooperate to aim to arrive at a resolution of these issues as to assent or non-assent at the earliest possible opportunity. I therefore will order that all those Names who are in fact in dispute with Lloyd's as to assent or non-assent will have their positions held over until the matter is resolved by this court. Any other matters which have to be dealt with in any other Lloyd's actions? No. Thank you all very much. Can I just ask whether it is appropriate that the court should hang on to the papers - there are huge quantities of them - or whether Wilde Sapte, who have been engendering this material, want it back? MR. LORD: My Lord, I do not think that the court needs to keep it. I am not sure if Wilde Sapte want it back or not, but I think we had possibly better take it back. MR. JUSTICE COLMAN: Well, I ask, because you have come off the record, you see. This is the point. MR. LORD: My Lord, I think it is easier if Wilde Sapte take it and if Mr. Freeman wants anything ---- MR. JUSTICE COLMAN: It would be of very great assistance to the court, I think, in order to help it monitor what is going on if we could keep records of the orders that have been made and, I think, we did not get the transcripts last time, so it would be a good idea if people are getting transcripts of what was said today that the court ought to be given a transcript. That does not mean to say at the expense of the parties. I can order that the court should have its own transcript made of this matter. So I will have a transcript of what has passed this morning and this afternoon in these proceedings, and if the parties want to get their own transcripts, that is down to them. MISS WICKS: My Lord, it might be helpful if I say that when we appeared before Mr. Justice Cresswell this morning, he asked me to ensure that copies of your orders made today were sent to him, because I believe he is collecting all the information together. So that should help the process. MR. JUSTICE COLMAN: Yes, that is right. He is monitoring all the Lloyd's orders. So perhaps Mr. Justice Cresswell could be provided with these orders. MR. COLFOX: I am sorry, to bother you, my Lord, but could I clarify, because we have not got much time, we have got to make a decision by the end of business on Tuesday - does your order holding over the positions apply in all actions, including ones that are not before you? MR. JUSTICE COLMAN: That is what I indicated. It seems to me that I probably do not have jurisdiction to make an order in an action of which I am not actually seised but I nonetheless do make the order as a matter of convenience so that all parties concerned will know that if they in fact come to the court on the basis that there is a dispute as to acceptance or non-acceptance of R&R and there is any question that arises as to whether before the resolution of that dispute they should be deemed to have withdrawn or had the action against the particular defendant in question dismissed, the court will take the view that the R&R assent issue should be previously determined. Back to menu MISS WICKS: My Lord, to be fair to Mr. Colfox, I think you ought to make clear that that would not affect the order made this morning by Mr. Justice Cresswell. Mr. Colfox appeared on behalf of his father in that case and Mr. Justice Cresswell held, having failed to comply with the unless order, that his action was dismissed. So I think it is fair to say that ---- MR. JUSTICE COLMAN: But is Mr. Colfox's father the subject of a dispute as to whether he has accepted R&R or not? MISS WICKS: My Lord, we are not sure at the moment but I understand that to be Mr. Colfox's position, yes. MR. COLFOX: My Lord, I have tried to find out if there is a transcript of that hearing this morning, but I do disagree with what has just been said. He said he was going to talk to your Lordship and then ---- MR. JUSTICE COLMAN: I have made a decision on this point now and I am not changing it. MR. LORD: My Lord, can I just mention one more matter, which is that Wilde Sapte believe that they know of another possible 40 people who are conditional acceptors who have now been declared to be non-acceptors. Does your Lordship envisage that Wilde Sapte as one final act will notify those 40 of your Lordship's decision? MR. JUSTICE COLMAN: It would be very helpful if they could bring themselves to do just that. Thank you very much.